California OAH special education order · November 1, 2016
Order Requiring Additional Information for Motion for Stay Put and Opposition
OAH Case No. 2016100759, 2016100769 · ALJ Adrienne L. Krikorian
OAH deferred ruling on Student's stay put motion and ordered more evidence and legal briefing on whether Delano must maintain Student's Torrance IEP after Student enrolled there over the summer.
Summary
Student asked OAH to order Delano to carry out the May 5, 2016 IEP from Torrance Unified as Student's stay put placement, including behavior services from a non-public agency. Delano opposed and said Student never attended any school in the district. Father enrolled Student at Delano on June 17, 2016, apparently after Torrance's school year ended. Before deciding, OAH ordered both sides to file by November 4, 2016 the last day of the 2015-2016 school year for each district and legal authority on whether a new district must keep the 'status quo' when a child enrolls after the regular school year ends.
Why it matters
Federal and state law require a new district to give a comparable interim program only when a student transfers during the same school year. Families who move between districts over the summer may not be able to rely on stay put to keep the old district's IEP in place. The timing of enrollment can decide the outcome.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Ed. Code, § 56325, subd. (a)(1)
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
- Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2016100759 (Primary)
v.
DELANO UNION ELEMENTARY
SCHOOL DISTRICT; DELANO UNION
SCHOOL DISTRICT
DELANO UNION SCHOOL DISTRICT, OAH Case No. 2016100769 v. ORDER REQUIRING ADDITIONAL
INFORMATION FOR MOTION FOR
PARENT ON BEHALF OF STUDENT. STAY PUT AND OPPOSITION
On October 26, 2016, Student filed a motion for stay put, which was supported by two declarations under penalty of perjury, a copy of Student’s May 5, 2016 individualized education program from Torrance Unified School District, and authenticated correspondence. On October 31, 2016, Delano Union School District filed an opposition supported by declarations under penalty of perjury.1
APPLICABLE LAW
Until due process hearing procedures are complete, a special education student is entitled to remain in his or her current educational placement, unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006); Ed. Code, § 56505 subd. (d).) This is referred to as “stay put.” For purposes of stay put, the current educational placement is typically the placement called for in the student’s individualized education program, which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)
In California, “specific educational placement” is defined as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to District concurrently filed a Motion to Dismiss which will be addressed in a separate order after Student has had an opportunity to respond to that motion.
an individual with exceptional needs,” as specified in the IEP. (Cal. Code Regs. tit. 5, § 3042, subd. (a).)
When a special education student transfers to a new school district in the same academic year, the new district must adopt an interim program that approximates the student’s old IEP as closely as possible for 30 days until the old IEP is adopted or a new IEP is developed. (20 U.S.C. § 1414(d)(2)(C)(i)(1); 34 C.F.R. § 300.323(e); Ed. Code, § 56325, subd. (a)(1); see Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1134, 20 U.S.C. § 1414(d)(1)(B).) The Individuals with Disabilities Education Act and state law do not expressly provide that students who transfer school districts between academic years are entitled to a comparable placement. (See Ibid.)
DISCUSSION
Student asserts that he attended Torrance Unified School District during the 2015- 2016 school year. His last agreed upon and implement IEP developed by Torrance was on May 5, 2016. Father’s declaration establishes that, for personal family reasons, he wanted Student to attend school for the 2016-2017 school year at Delano. He enrolled Student at Delano on June 17, 2016. Delano held two IEP meetings for Student in July and early August 2016. Father disagreed with Delano’s offers of FAPE, and asserted his right to “unilaterally place” Student at an undisclosed educational institution. Delano’s opposition includes a declaration from its special education director who asserts that Student has never attended any school at Delano or within Kern County during the 2016 extended school year or regular 2016-2017 school year. Student claims Delano is required under the doctrine of stay put to implement the May 5, 2016 IEP from Torrance, including specific behavior services that were provided by a non-public agency.
Before the merits of the stay put motion can be addressed, the parties shall provide, on or before 3:00 p.m. on November 4, 2016, by declaration under penalty of perjury or appropriate authenticated evidence, the following:
1. The date of the last day of the 2015-2016 school year for Torrance and Delano.
2. Applicable legal authority and argument on the issue of whether a new school
district is obligated to maintain the “status quo” under Education Code section 56505 subd. (d) if a child enrolls in the new district after the end of regular academic school year.
IT IS SO ORDERED.
DATE: November 01, 2016
ADRIENNE L. KRIKORIAN
Administrative Law Judge Office of Administrative Hearings